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Equal Rights and Discrimination Law in Scandinavia

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Equal Rights and Discrimination Law in Scandinavia Equal Rights and Discrimination Law in Scandinavia Lynn Roseberry 1 Introduction Employment discrimination law in Scandinavia1 is a relatively recent development–occurring within the past thirty years. As will be discussed further below, the first proposals to legislate in this area met with some initial resistance, largely because such legislation was considered incompatible with the Scandinavian labour law tradition of self-regulation.2 Employment discrimination legislation was ultimately adopted despite this resistance primarily because of influences from international law and the women’s movement in Scandinavia. The Scandinavian countries acceded to a number of international agreements banning sex and race discrimination in the 1960s and 70s, such as ILO Conventions 1003 and 111,4 and the UN Conventions on Race Discrimination5 and Elimination of All Forms Discrimination against Women.6 1 In Scandinavia “equal rights” is the term usually applied to sex discrimination law. Laws concerned with other kinds of discrimination are generally referred to as “discrimination” law. I will use the American term “employment discrimination law” to refer to laws addressing the problem of discrimination against particular groups in the labor market. In this article, “Scandinavia” refers to Denmark, Finland, Norway and Sweden. The Encyclopædia Britannica explains that Scandinavia has been historically held to consist of Norway, Sweden and Denmark. Some authorities argue for the inclusion of Finland on geologic and economic grounds. “Nordic” refers to the Scandinavian countries plus Iceland. 2 See Reinhold Fahlbeck’s contribution on industrial relations and collective labour law in this volume. See also Ruth Nielsen, Equality in Working Life: Legislation, Positive Action and Introduction of New Technology in Ruth Nielsen, editor, Women’s Law in Scandinavia (Copenhagen: Kvindevidenskabeligt Forlag 1982). 3 Equal Remuneration Convention 1951. 4 Discrimination (Employment and Occupation) Convention, 1958. 5 International Convention on Elimination of All Forms of Racial Discrimination 1965 (ICERD). © Stockholm Institute for Scandianvian Law 1957-2009 216 Lynn Roseberry: Equal Rights and Discrimination Law in Scandinavia Accession to these international agreements triggered debates about the extent to which legislation was necessary to live up to the obligations they imposed. The circumstances leading up to the emergence of feminist movements in Scandinavia in the 1970s provided an additional political basis of support for adoption of equal rights legislation despite friction with the Scandinavian labour law model. The first legislation addressing discrimination in the Scandinavian labour market concerned sex discrimination and appeared in the 1970s. Other kinds of discrimination did not receive any special legislative attention until the 1990s. Section 2 of this article describes the development of laws addressing employment discrimination on the basis of sex. Section 3 describes the development of laws intended to address employment discrimination based on other factors. 2 Sex Discrimination Law in Scandinavia 2.1 Introduction Scandinavia is sex equality’s Promised Land – at least according to international comparisons carried out by the United Nations. These comparisons indicate that the Scandinavian countries have come closer to achieving sex equality, based on such indicators as education, employment, political participation and health, than any other country.7 The Scandinavian countries have the highest percentage of women in the labour market than anywhere else, with between 65 and 74 per cent of women employed in 1998.8 Nevertheless, the UN’s score card on sex equality does not accurately portray conditions on the labour market since the indicator with regard to employment consists only of statistics on the percentage 6 Convention on the Elimination of Discrimination against Women 1979 (CEDAW). 7 See, e.g., UNIFEM, Progress of the World’s Women 2000: UNIFEM Biennial Report (United Nations Development Fund for Women. This report presents the first global assessment of obstacles to gender equality and women’s empowerment using three key indicators taken from the UN indicator framework for development assessments. (See page 65 of the report). These indicators are the ratio of girls’ to boys’ enrollment in secondary education; women’s share of parliamentary representation; and women’s share of paid employment in industry and services (i.e., non-agricultural activities). The report assesses a country’s progress towards sex equality based on targets agreed upon by UNIFEM in consultation with NGOs as well as intergovernmental organizations. The target for gender equality in secondary education is a ratio of between 95 and 105 of girls’ to boys’ enrolment and enrollment of girls at a rate of 95%. A country has achieved gender equality in political representation if women hold 30 per cent or more of the seats in national legislatures. A figure in the range of 45-55 percent of paid employment for women’s share is taken as indicating equality. Only Finland, Norway, Sweden, Denmark and Iceland have accomplished all three goals. For discussion of Sweden as the reputed “promised land of sex equality”, based on a 1995 UNDP Report, see Ronnie Eklund, The Swedish Case—The Promised Land of Sex Equality? in Tamara K. Hervey and David O’Keeffe, editors, Sex Equality Law in the European Union (Chichester: Wiley 1996) 337. 8 See Women and Men in the Nordic Countries 1999: Facts and figures 1999 (Copenhagen: Nordic Council of Ministers 1999) 6. © Stockholm Institute for Scandianvian Law 1957-2009 Lynn Roseberry: Equal Rights and Discrimination Law in Scandinavia 217 of women’s share of paid employment in industry and services. Equal pay and occupational segregation are not considered. Statistics on women’s and men’s wages and the distribution of men and women in different sectors indicate that pronounced inequalities between the sexes still exist in the Scandinavian labour market. The average wage gap between the sexes lingers in the range of 15-20% in Denmark, Sweden and Finland although it is much wider in certain sectors of the labour market in those countries and as a whole in Norway.9 Women are clustered into public sector jobs in social work, health, personal services and education, while men occupy close to 80% of jobs in private industry, wholesale trade and communication and construction.10 These inequalities in the labour market suggest that Scandinavian women owe their privileged position in the world more to their countries’ social welfare policies than to laws addressing sex discrimination in the labour market.11 Scandinavian social welfare policies include provision of basic services – such as education, health care, and childcare – that are a precondition for sex equality. These services are heavily subsidized by public funds and produced by the public sector, so that fees are quite reasonable, if required at all. These services are also available to all citizens who fulfil the conditions, without regard to employment or family situation. Furthermore, these services are not limited to the bare essentials, but are generally quite extensive, including university education through the graduate level, the full range of health care, from visits to the family doctor to surgery, hospitalisation and specialized medical care, and full-time day-care, supplemented by generous periods of paid maternity leave.12 Finally, the strong emphasis on collective agreements as the basis for regulation 9 According to the latest report from Eurostat, Statistics in Focus: Population and Social Conditions (Theme 3, 5/2001), women’s average earnings in Sweden in 1995 came closest to men’s in the EC (and undoubtedly the world) at 88% of men’s average earnings, though the gap has increased somewhat since then. In Denmark, women’s average earnings were around 85%. Denmark and Sweden were not the only countries to narrow the gender wage gap to less than 20% – the statistics for Belgium and Luxembourg are just about the same. In regards to the wage gaps in specific sectors of the labour market, in Denmark in 1999, women’s average earnings in the business services sector, for example, was only about 75% of men’s. In Finland, women’s average earnings in the financial services sector was about 65% of men’s in 1999. In Norway women’s average earnings were at about 67% of men’s in 1999, although the average earnings of women working full time ranged from a low of 73% to a high of 95% of men’s. See Centre for Gender Equality, Mini Facts on Gender Equality 2001 (Centre for Gender Equality: Oslo 2001) available at “http://www.likestilling.no”. 10 See Women and Men in the Nordic Countries 1999, note 8 above, at 8-9. In Norway 32% and in Sweden 27% of women were working part-time in 1998 as compared with only 6% of men in both countries. Id. at 6. In Denmark and Finland only 9% of women and 4% of men were working part-time. Id. 11 See Kevät Nousiainen and Johanna Niemi-Kiesiläinen, Introductory Remarks on Nordic Law and Gender Identities in Responsible Selves: Women in the Nordic Legal Culture, edited by Kevät Nousiainen, Åsa Gunnarsson, Karin Lundström and Johanna Niemi-Kiesiläinen, (Ashgate/Dartmouth 2001)(hereinafter “Responsible Selves”) 2. 12 The proportion of all children aged 3-6 in day-care institutions in 1997 gives a good indication of the importance of this service. In Denmark, it was 77%, Norway 71%, and Sweden 62%. In Finland it was only 45%. See Women and Men in the Nordic Countries 1999, note 8 above, at 10. © Stockholm Institute for Scandianvian Law 1957-2009 218 Lynn Roseberry: Equal Rights and Discrimination Law in Scandinavia of labour relations has also helped to reduce income inequality in general, which also benefits women. A quick comparison with the United Kingdom and the United States, for example, lend support to the view that Scandinavia’s social welfare policies have had more impact than employment discrimination law on women’s position in Scandinavia. Neither the UK nor the U.S.
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